European Court Refuses to Force ISP’s Installation of System for Monitoring/Filtering Out Unlawful Music Sharing

The European Court of Justice (Third Chamber) recently
ruled that general, indiscriminate monitoring cannot be forced upon ISPs in the
event of illegal music sharing. The ruling, a setback for copyright
representative Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM),
precluded an injunction against the ISP, Scarlet Extended SA. The injunction would
have required Scarlet to install a system for monitoring/filtering out unlawful
file sharing.

Scarlet's customers illegally downloaded works in SABAM's
catalogue, and SABAM sought an order requiring Scarlet to install a system for
filtering electronic communications which used file-sharing software. The
monitoring required active observation of all electronic communications
conducted on Scarlet's network. Consequently, the monitoring encompassed all
information to be transmitted and all customers using the network. In the light
of the foregoing, the filtering system obliged Scarlet to actively monitor all
the data relating to each of its customers in order to prevent any future
infringement.

Scarlet argued that the installation was illegal because
it would impose on Scarlet, de facto, a general obligation to monitor
communications on its network, inasmuch as any system for blocking or filtering
peer-to-peer traffic would necessarily require general surveillance of all the
communications passing through its network.

Directives
2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming
from the protection of the applicable fundamental rights, must be interpreted
as precluding an injunction made against an internet service provider which
requires it to install a system for filtering

●all electronic communications passing via its services,
in particular those involving the use of peer-to-peer software;

●which applies indiscriminately to all its
customers;

●as a preventive measure;

●exclusively at its expense; and

●for an unlimited period,

which is capable of identifying on that provider's
network the movement of electronic files containing a musical, cinematographic
or audio-visual work in respect of which the applicant claims to hold
intellectual-property rights, with a view to blocking the transfer of files the
sharing of which infringes copyright.